Mullins Broadcasting Co.

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 119 (N.L.R.B. 1972)

MULLINS BROADCASTING COMPANY 119
Mullins Broadcasting Company and American Federa-
tion of Television and Radio Artists, Denver Local,
AFL-CIO. Cases 27-CA-3248 and 27-CA-3307
November 7, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On April 27, 1972, Trial Examiner Maurice M.
Miller issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions' and a
supporting brief, and the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Mullins Broadcasting Compa-
ny, Denver, Colorado, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
1 The exceptions pose successorship and backpay issues which may be
raised at the compliance stage of this proceeding.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner: Upon a charge
and amended charge in Case 27-CA-3248, filed and duly
served on May 7 and 24, 1971, respectively, the General
Counsel of the National Labor Relations Board caused a
complaint and notice of hearing to be issued and served on
Mullins Broadcasting Company, designated as Respondent
within this decision. The complaint was issued and served
July 15, 1971. Thereafter, upon a charge filed July 22 in
Case 27-CA-3307, the General Counsel's representative
prepared and served an order consolidating cases, amend-
ed consolidated complaint, and notice of consolidated
hearing. The consolidated complaint issued August 16,
1971; therein, Respondent was charged with unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1), (3), and (4) of the National Labor
Relations Act, as amended, 61 Stat. 136, 73 Stat. 519.
Within Respondent's duly filed answer, certain factual
statements in General Counsel's consolidated complaint
were conceded; Respondent, however, has denied the
commission of unfair labor practices.
Pursuant to notice, a hearing with respect to this matter
was held in Denver, Colorado, on October 5 and 6, 1971,
before me. The General Counsel and Respondent were
represented by counsel. When the hearing began, General
Counsel's representative moved three substantive amend-
ments with respect to the consolidated complaint; his
motion was granted. Thereafter, each party was afforded a
full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues.
Since the hearing's close, briefs have been received from
General Counsel's representative and Respondent's coun-
sel. These briefs have been duly considered.
Upon the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent raises no question with respect to General
Counsel's jurisdictional claim. Upon the consolidated
complaint's relevant factual declarations-which are con-
ceded to be correct-the following determinations are
found warranted: That Respondent is a Colorado corpora-
tion which maintains its principal office and place of
business in Denver, within that State; that Respondent,
throughout the period with which this case is concerned,
was engaged and is engaged in the operation of Radio
Station KBTR and Television Station KBTV, both
affiliated with the American Broadcasting Company; and
that Respondent, in the course and conduct of its business
operations, derives a gross income which exceeds $200,000
annually, with more than $30,000 annually derived from
national advertising accounts. I find that Respondent was,
throughout the period with which this case is concerned, an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect
commerce : •ithin the meaning of Section 2(6) and (7) of
the Act, as amended. Further, with due regard for
presently applicable jurisdictional standards, I find asser-
tion of the Board's jurisdiction in this case warranted and
necessary to effectuate statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Television and Radio Artists,
Denver Local, AFL-CIO, designated complainant Union
within this Decision, is, and at all material time herein has
been, a labor organization within the meaning of Section
2(5) of the Act, as amended, which admits certain of
Respondent's employees to membership.
In. THE UNFAIR LABOR PRACTICES
A. Issues
This consolidated case presents several distinct, but
nevertheless, related questions. First: General Counsel
contends that Respondent's radio station management
200 NLRB No. 30
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changed Richard Way's job duties, discriminatorily,
because of testimony which he had given previously during
a Board representation case hearing . Respondent suggests,
contrariwise, that Way's several duties were "consolidated"
for reasons "personal to [him]" and for the betterment of
Respondent 's business . Second: General Counsel seeks a
determination that Respondent 's management discrimina-
torily sought to reduce Carl Stone's radio station working
hours and thereafter declared that his services were
terminated, violating Section 8(a)(3) of the statute thereby.
Respondent contends , however , that Stone was terminated
pursuant to his personal request. Third: General Counsel
charges Respondent's television station management with a
subsequent discriminatory refusal to hire Stone for
television work . Respondent suggests , contrariwise , that its
television facility, then, had no position available for a
person with Stone's qualifications. Fourth: General Coun-
sel contends that certain management representatives
-specifically, News Director Scott of Respondent's radio
station and News Manager James Reiman of Respondent's
television facility-made various statements , during the
period with which this case is concerned, reasonably
calculated to interfere with, restrain , and coerce Respon-
dent's radio station workers with respect to their exercise of
rights statutorily guaranteed. Responding to these charges,
Respondent herein notes a general denial.
B. Facts
1. Respondent's business
Respondent corporation, throughout the period with
which this case is concerned , maintained two Denver
broadcasting facilities, Radio Station KBTR and Televi-
sion Station KBTV, respectively . KBTR's general manag-
er, during the period in question,was William MacCrys-
tall; Robert Scott was, then, the station's news director.
Scott was MacCrystall's departmental subordinate, respon-
sible for KBTR's programs; throughout the period with
which this case is concerned, the station maintained a 24-
hour radio broadcasting service devoted to news reports
exclusively.
Respondent's television facility, KBTV, maintains a
separate studio within contiguous quarters. Throughout the
period with which this case is concerned, the station's news
director, Carl Akers, was technically in charge of KBTV's
newsroom; his responsibilities were, however, shared to
some degree by James Reiman, KBTV's news manager.
Reiman and Akers worked slightly different shifts; during
morning hours, when Akers was not present, Respondent's
news manager, so Akers testified, ran the television
station's newsroom. (The record suggests-though it does
not clearly show-that Reiman may no longer be with
KBTV; Roger Ogden, according to Akers, is currently
designated the station's news manager.) During April 1971,
KBTV's chief news photographer, Tom Baer, headed a
staff which, with him, compassed five news photographers.
Two, Jacoby and O'Donnell, were, together with Baer
himself, fully qualified news cameramen. The station's
staff, however, likewise included two cameramen trainees,
Villanueva and Hamilton, specifically.
2. Richard Way's reassignment
a. The representation case
Pursuant to a petition previously filed by complainant
Union herein (Case 27-RC-3998) with respect to certain
Radio Station KBTR workers , the Regional Director for
Region 27 scheduled a February 22, 1971 , representation
case hearing . Complainant Union , through its petition, was
seeking certification within a bargaining unit defined to
compass all regular full-time and part-time production
employees . Respondent contended , however, that repre-
sentation within separate units should be directed for the
Radio Station's 12 on-the-air announcers and 4 off -the-air
controllers ; further , Respondent contended that KBTR's
production coordinator did not share a sufficient commu-
nity of interest with either the station 's announcers or
controllers to warrant his inclusion within a bargaining
unit which comprised members of either group.
During the scheduled February 22 hearing, Richard
Way, then a member of Respondent's radio station
"talent" staff, testified with respect to his various job
duties. Substantially, he declared that , within his work-
week, he broadcast "traffic advisory" reports, cut local
and national tapes, and served a regular stint on KBTR's
control board. (The present record provides some testimo-
nial definitions with regard to these various job functions.
For present purposes , however, they need not be described
within this decision , save in certain respects which I
propose to discuss hereinafter .) Responding to a question
presented by Petitioner Union's counsel, Way stated that
his scheduled periods of control board service involved
"job functions" similar to those performed by Respon-
dent's regular off-the-air controller technicians . Further, he
characterized himself , generally, as being a reporter and
part of a team . When requested, thereafter , to define his
"team" concept, Way declared:
Just by gathering some of the speech here today, it
seems like we are trying to be segregated, but every
man is an integral part of the sound of the product we
put out. That's what I mean by part of a team. Every
hand washes the other during the course of the day,
and our final product is not one man who says, "Do
this and do that ," or pushes a button . It's an overall
picture.
MacCrystall, KBTR's general manager , attended the
representation case hearing. News Director Scott was not
present ; the present record warrants a determination,
however, that MacCrystall subsequently provided him with
a summary of Way's testimony.
b. Way's job functions
While a witness herein, Way provided some further
testimony regarding his job duties . Specifically, he declared
that-for slightly more than a month before his February
22 testimony-he had likewise been drafting "special"
information reports for broadcast delivery. These have
been described as short (2-1/2- to 3-1/2-minute) radio
documentaries , prepared to provide further detail with
respect to regular news stories.
Regarding Way's so-called "local tape" work , which he
MULLINS BROADCASTING COMPANY 121
did not detail , News Director Scott, while a witness,
provided a brief description . Local tape men, so I find,
solicit and procure direct statements-"actualities"-from
locally newsworthy persons; record their statements;
transfer such recorded statements to tape cartridges for
broadcast purposes ; and prepare "lead-in" copy, which the
radio station's on-duty newscasters will then read before
playing the particular local tape cartridge.
We have, within the present record , capsule descriptions
regarding the work which station personnel are required to
perform on national tape and traffic report broadcasts, and
while serving on KBTR 's control board . For present
purposes , however , no detailed exposition regarding these
particular job functions seems required.
c. The change in Way's job duties
On February 23, shortly after Way reported for work,
Respondent's news director summoned him. With respect
to their conversation , the former's testimony, which I
credit , shows: Scott declared himself sorry to hear that he
(Way) was "not happy" with his work . Way, somewhat
surprised, replied promptly that he was "very" happy.
Scott , however, persisted; he declared that General
Manager MacCrystall had reported Way's unhappiness,
bottomed upon his previous day's testimony that Respon-
dent was requiring him to perform five different job
functions . Way disclaimed any prior testimonial reference
whatsoever to purported unhappiness ; he summarized his
previous day's witness chair recitals, and reiterated his
testimonial contention that his various duties were "part of
a composite package" which contributed to their station's
ultimate sound. Despite Way's repeated protestations, with
regard to Scott's willful misinterpretation of his previous
testimony's significance , the latter declared that Respon-
dent's president , Alvin Flanagan , MacCrystall, and he
considered Way unhappy; he reported that they had spent
some time the previous evening determining how to make
him (Way) happy with his work . Respondent's news
director thereupon handed Way a memorandum letter
notifying him that he was being relieved from performing
two of his five functions ; he would no longer be required to
do local tape work , or prepare special information reports.
When Way asked why these particular functions were
being canceled, Scott replied that they were the only two
functions which he could "effectively eliminate from
[Way's ] responsibilities," thereby relieving his workload,
without affecting KBTR's overall performance.
(While a witness, herein, Way described the two
functions canceled as those which were "more attractive"
because they required more initiative , carried more
responsibility, and presented a greater challenge . Respon-
dent's news director, likewise, conceded, while a witness,
that the preparation of national tape cartridges for
broadcasting required "less thinking" and "less effort"
than local tape work, from station personnel. The rele-
vance of these judgments will be discussed further within
this decision.)
Ironically, Scott 's memorandum-which detailed his
purported "understanding" that Way was not happy with
what he considered to be five separate job functions-not-
ed the news director's personal belief that all KBTR
personnel performed "one job" putting their radio station
on the air . Way protested that the memorandum's so-called
,.one job" message paralleled , precisely, the point which he
(Way) had been trying to make through his representation
case testimony . He reiterated his declaration that nothing
within that testimony had been calculated to suggest
"unhappiness" with his five assigned station functions.
However, Respondent's news director-so far as the record
shows-made no reply; upon this note , their conversation
terminated.
My factual determinations herein-specifically with
respect to Way's reassignment-derive directly from his
testimony . However, Respondent 's news director, who had
initially professed nothing more than some "vague"
recollection with regard to their conversation , finally
corroborated his former subordinate's recital , substantially.
Way has, therefore, been credited.
With respect to Scott's purported motivation for Way's
reassignment , however, General Counsel has proffered
further testimony . Susan O'Brien Hautzinger, then and
now a radio station reporter, recalled , inter aliq that
sometime fairly early during the morning which followed
the representation case hearing Scott had voluntarily
mentioned the subject of Way 's testimony therein:
He said that Rich had made management extremely
unhappy with his testimony . . . . He understood that
Rich had testified to doing five or six different jobs.
Bob said that he understood Rich 's point was [that] the
controllers were in similar situations [,] and that is what
the hearing was about ; that he understood what Rich
had meant , but that he had orders to respond to Rich's
complaint, and so he was therefore rescheduling Rich.
... Bob said that Rich would not be happy with the
reassignment because it was-he used a phrase-the
least interesting portions of what Rich had done before.
He concluded that conversation just by saying that
Rich was getting-I think this is a direct quote-what
he had asked for.
Respondent 's news director, so I have noted , had testified
previously ; he was not, however , recalled to challenge,
contradict , or qualify Hautzinger 's proffered recollection.
While a witness , he had characterized Hautzinger as his
"confidante" during his period of service in Respondent's
hire, upon whom he regularly "unloaded" when beset with
problems and frustrations . With due regard for these
circumstances , I find Hautzinger's testimony relative to
Respondent 's motive for Way's reassignment, herein
quoted, credible.
The record , however, warrants a further detern ina-
tion-which I make-that, despite his purportedly "consol-
idated" duties, Way suffered no change with respect to his
salary or total weekly working hours.
3. Carl Stone's discharge
a. Stone's work history
Carl Stone had begun work with Respondent during
December 1967 ; he first served as a copy boy (general
factotum) with the firm's television station . Shortly
following his hire , however, when the station confronted an
emergency situation, Stone was given a news cameraman's
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assignment. And thereafter-so his credible, substantially
uncontradicted, testimony shows-he was "used on vari-
ous occasions" to shoot news film.
Stone had sought station work, initially, because he then
lacked sufficient funds to continue his previously com-
menced college studies. With full-time work, however, his
financial situation improved; Carl Akers, KBTV's news
director-who had taken a personal interest with respect to
his prospects-thereupon suggested that he resume his
college work. This Stone did; he matriculated at Denver's
Metropolitan State College during that school's 1968
summer session.
Throughout this period, so his credible testimony shows,
Stone nevertheless continued to work a regular "40 hour
minimum" week. On two or three occasions during final
examination period, however, he did, concededly, request
temporarily reduced hours, so that he would have extra
time for study; these requests were granted. (Stone
testified-credibly and without contradiction-that each
of these occasions merely involved a limited reduction of
working hours, spread over short periods running from 3
days to 1 week. I so find.) Sometime during January 1970,
Stone began work for Respondent's radio station, serving
as a traffic reporter. He was transferred to KBTR's payroll,
formally, some 3 months later. Nevertheless, so his credible
testimony shows, he continued to shoot silent news film,
intermittently, for Respondent's television station; some of
it, according to Stone's testimony, was used.
For most of his first KBTR year, 1970, Stone worked a
full-time split shift-4 morning hours and 4 nighttime
hours-during which, among other functions, he did the
station's morning and evening traffic reports. With the fall
of the year, however, Stone transferred his college
enrollment to the University of Colorado in nearby
Boulder; he then requested Akers' help in rearranging his
work schedule. Thereafter, I find, he worked a 40-hour
schedule of 6 morning hours, 5 days per week, plus a 10-
hour Saturday shift. With respect thereto, Stone testified
-credibly and without significant contradiction-as fol-
lows:
There was some confusion as to where I was to work,
for television or for radio . . . . I was taking directions
from several different bosses, and at one time I would
be under the direction of the television news staff, and
at another time I would be under the direction of the
radio news staff . . . . I really never concerned myself
as to whether I was working for the radio station or the
television station. I was employed by Mullins Broad-
casting. I had, of course, to answer to a superior. When
I worked for television payroll, I worked for television;
when I worked for the radio station, I worked for radio.
b. The request for a split shift
When 1971 began, Stone was working a regular 40-hour
week . During January of that year-following a radio
station work schedule which Scott , Respondent's newly
hired news director , had prepared-he was working 8
hours daily , Saturday through Wednesday , with Thursdays
and Fridays free . Of his 40 hours, 6 were devoted to traffic
reports, (2 afternoon hours daily, Monday through
Wednesday), with 24 hours spent preparing "national"
tape for radio broadcasts , 6 hours of radio "air shift" time,
and 4 hours of editorial desk duty.
By March ,. his work schedule had been revised . Details
with respect to his reworked schedule have not been
proffered for this record ; seemingly , however , he was then
working a schedule which included a Thursday shift. Early
during the month designated , he requested permission to
work a split shift on that day, so that he could attend a
college class ; specifically , he requested permission to leave
work at noon Thursdays, and return at 3 o'clock. During
the first of several conversations with News Director Scott
regarding his problem , Stone had, pursuant to Scott's
request , suggested several arrangements through which his
college class schedule and work schedule could be
reconciled . Respondent's news director-so Stone's credi-
ble testimony shows-had commented, however, that
"things" change; that there was a union "coming up"; that
he had to "play by the books"; that Stone's request
contravened company policy ; and that he would not be
able to comply. Finally, however, Scott declared-during a
March 16 conversation-that, if Stone would prepare a
memorandum for his file "so that he would be protected,"
the requested split shift would be authorized. This Stone
did. (Respondent 's news director , who was questioned
herein before Stone took the witness stand , had recalled
their March 16 conversation in terms which Stone's later
recital-herein summarized-substantially paralleled.
Scott's previously proffered recollections, however, had
contained no reference to comments that a union was
"coming up" for KBTR's personnel , or that he would
"play by the books" thereafter. While a witness , Respon-
dent's news director had been frequently evasive; with
respect to certain significant conversations he had conced-
ed vagueness of recollection . Within my view, therefore,
Stone's subsequent testimony-regarding the matter now
in question-merits credence .) During their conversation,
Stone further recalled, Scott had made some reference to
the fact that he (Stone) might thereafter be limited to part-
time work . Stone had demurred , contending that he could
not work part time since he would then be required to
forego certain company insurance benefits which were not
available for part-time personnel . Respondent's news
director, so far as the record shows, had vouchsafed no
reply.
c. Stone 's removal as Respondent 's radio traffic
reporter
Respondent's radio station, consistently with regular
industry practice , retains a so-called national sales repre-
sentative-Blair Radio-for the purpose of selling "time"
to national business organizations , headquartered outside
the Denver area , for advertising purposes . Inter alia,
however , Blair provides a further service for radio station
clients ; the national sales representative 's radio "experts"
regularly listen to station programs, and provide annual
critiques designed to promote "improvements" with
respect to various aspects of station performance. During
February 1971, specifically, Blair's radio expert visited
Denver, monitored KBTR 's programs , conferred briefly
with the station's management , and subsequently prepared
a detailed report and critique based on notes . This so-
MULLINS BROADCASTING COMPANY 123
called "Blair Report" seems to have reached Respondent's
radio station on or about April 2; the record, preponder-
antly, so shows. Therein, various KBTR program features
were criticized. Among other things, Stone's traffic control
reports were characterized as poor, when compared with
those provided by locally competitive` stations, due largely
to his purportedly "unforceful" delivery. KBTR's station
management was told that some "voice of authority" for
these reports would add dimension.
Promptly after receiving Blair Radio's report, General
Manager MacCrystall, within a dated April 2 memoran-
dum directed to Respondent's news director, noted the
report's "repudiation of [Stone's ] air worthiness." Scott
was directed to assign a more "forceful" replacement.
Pursuant to MacCrystall's directive, Stone was notified
that very day that he was being relieved of responsibility
for KBTR's traffic reports. (Within a file memorandum,
supposedly contemporaneously prepared, Scott noted
Stone had been "warned" that both the Blair Report and
Respondent's management were "highly critical" with
respect to his work, and that his dismissal had been
recommended. The memorandum concluded with a further
notation that Stone was told he would be given a nonair
work schedule, should KBTR's "need" and available
money permit. While a witness, however, Scott was not
requested to provide testimonial confirmation that Stone
was, really, given the warnings noted. The latter recalled no
such statements. Since the record considered in totality
-within my view--clearly reveals Scott's disposition to
prepare self-serving memorandums, no factual determina-
tions consistent with his file memorandum's substance
seem warranted. Stone's testimony with regard to their
April 2 conversation, rather, merits credence. I so find.)
Following April 2, therefore-so credible testimony shows
-Stone was no longer required to perform "on-the-air"
functions. He merely prepared national and local tape
cartridges for broadcast, and worked on Respondent radio
station's control board.
Disappointed with this seeming "demotion" which
suggested, he thought, that his prospects for personal
progress in Respondent's hire were poor, Stone sought a
conference with KBTV's news manager, Reiman; the latter
was asked whether Respondent's television station had a
job opening for Stone as a news cameraman. Reiman
promptly promised that he would discuss the matter with
Akers; he then asked, however, whether Stone was
"unhappy" with his situation on Respondent's radio side.
When Stone responded affirmatively, Reiman asked
whether this was because complainant Union was seeking
representative status. Stone, replied negatively; he charged
KBTR's management with responsibility for his disgruntle-
ment. Further, he declared his readiness to vote for
complainant Union should he still be employed when the
representation vote would be conducted. (These factual
determinations derive from Stone's testimony, entirely.
Reiman never testified. The documentary and testimonial
record does suggest a possibility that his service with
KBTV may have ceased some time before this case was
heard. Inter alia, his name and telephone number were
listed, for the information of KBTR's staff, within a posted
April 27 memorandum; they do not, however, appear
within a comparable September 29 memorandum list.
Respondent's counsel, however, has proffered no sugges-
tion, herein, that Reiman was unavailable when this case
was heard, or that he could not be produced. Since Stone's
generally credible testimony detailing their conversation
was proffered straightforwardly-without contradiction-I
have found it sufficient to sustain the factual determina-
tions noted.) Reiman, once more, reassured Stone that he
would discuss the situation with Akers; he promised to see
whether they could "work something out" for Stone's
benefit.
d. Scott's termination decision
On April 13, the Regional Director for Region 27 issued
his Decision and Direction of Election in Case
27-RC-3998; therein, he directed a representation vote
within a bargaining unit defined to compass all regular
full-time and part-time production employees of Respon-
dent's radio station, including all those employees who
regularly and frequently voiced "on-the-air" radio materi-
al, newsmen, outside reporters, and controllers.
By April 16, thereafter, KBTR's newsroom was "awash
with rumors" that Respondent' s management planned
some kind of schedule or staff cutback. Hautzinger-so her
credible testimony shows-saw Respondent's news direc-
tor preparing a new work schedule. When she queried him
with regard thereto, Hautzinger recalled:
Bob [Scott] said that management was extremely
concerned about a declining profit margin. And he
went on to say that he had again therefore been
ordered to reduce staff spending by ten percent, and he
said that he'd been asked to do this because manage-
ment anticipated the union 's coming in and was trying to
figure that that would drive wages up ten percent and was
trying to make room now for them to come back up to the
present level with union wage increases. [Emphasis
supplied.]
Replying, Hautzinger suggested this might constitute an
unfair labor practice; Scott, however, rejected the sugges-
tion, contending that he was "free to make this kind of
change" before some specified future date. Hautzinger,
then, questioned the validity of Respondent's "assump-
tion" that complainant Union's success in winning repre-
sentative status would necessarily presage significantly
higher wage costs. Her comment-so I find-concluded
the conversation. (Scott, while a witness, substantially
denied making any forthright statement that he had been
directed to reduce staff spending by 10 percent, specifically
to "make room" for prospective company concurrence
with a comparable wage increase demand which complain-
ant Union would, most likely, present following certifica-
tion. Respondent's news director did concede a conversa-
tion with Hautzinger; with respect thereto, he did concede
telling her that General Manager MacCrystall had directed
him to cut payroll costs by 10 percent because of KBTR's
financial condition. He contended, however, that his
further comments had been phrased to reflect his personal
speculation, merely, with respect to MacCrystall's motive.
Previously, within this decision, I have noted the conceded
"vagueness" which frequently marked Scott's proffered
recollections, coupled with his disposition to provide self-
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
serving testimony . Hautzinger, by way of contrast , struck
me as knowledgeable , completely self-possessed , definitive-
ly straightforward , and prepared to testify consistently with
her best recollection . Her proffered version with respect to
this April 16 conversation-within my view-merits
credence .) Shortly thereafter , sometime during the morn-
ing, Stone was summoned to Scott's office . Respondent's
news director declared that General Manager MacCrystall
had directed him to "cut back" the station's staff, and to
"economize by eliminating" Stone particularly. Scott
claimed that he was , nevertheless, trying to save Stone's
job; he mentioned a possible reduction in hours.
When Stone , thereupon , solicited his proposal , Respon-
dent's news director declared he was planning a reduction
of Stone 's work schedule to 16 hours per week , confined to
weekend service ; he noted that there might "possibly" be
further work available, from time to time , during midweek
periods , but stated that he could not, then , make definite
commitments with respect thereto . Replying , Stone com-
mented that, should his hours be reduced , he would
"probably" have to file Board charges , since a reduction of
working hours for full -time workers, below the subsistence
level, constituted an unfair labor practice . His testimony,
then , regarding the balance of their conversation-which
substantially parallels Scott's previously proffered version
-reads as follows:
About this point he became irate . He told me that I was
being very ungrateful to not accept his offer and that he
really could not understand what I was saying. This
was a very serious thing, and he was very upset about
it. I told him it was not economically feasible for me to
work 16 hours a week , that I would not be able to make
my [credit ] payments. . . . This was all based on full-
time salary. The conversation at that particular time
became heated , and I told him the only difference
between my being fired and being reduced to 16 hours
a week [was] that I would be receiving welfare if I was
fired . . . . What I was indicating , he was reducing me
to the poverty level which was the way I felt at that
time. . . . As soon as I said the word "welfare," he
flared and said , "Consider this two -weeks ' notice."
With this , Stone, considerably shaken, left Scott's office.
Shortly thereafter, Hautzinger entered . She found KBTR's
news director "extremely" angry . He declared that-de-
spite his effort to keep Stone on Respondent's staff,
disregarding management order to "get rid" of him-the
latter had been ungrateful . He related their prior conversa-
tion, declaring that Stone had reacted by saying it would
be "just as good" for him to be fired, and on welfare, as
reduced to part-time work . Scott conceded , to Hautzinger,
that-because of his anger when confronted with the
quoted statement-Stone had been discharged.
Meanwhile, however, several of Stone 's fellow workers
had suggested that he would be well-advised to proffer an
apology , while notifying Respondent 's news director that
he would accept part-time work . This-so the record
preponderantly shows-Stone did . Scott, however, de-
clared that, "What is done is done ." Stone was told that his
plea for reconsideration had come too late. (While a
witness , testifying before Stone, Scott could not recall this
conversation . For reasons previously noted , Stone's prof-
fered recollections with respect thereto-within my
view-merit credence .) Respondent 's news director de-
clared , further, that General Manager MacCrystall had
been notified , by memorandum , regarding his discharge
decision . With this, their conversation terminated.
e. Subsequent developments
Directly following his two April 16 conversations with
Scott, Stone called upon Carl Akers, KBTV's news
director. He reported his discharge ; Akers, further, was
asked whether he had "anything" which Stone could do on
Respondent's television side.
According to Stone , their conversation proceeded as
follows : Akers asked whether he could shoot news film;
Stone said he could, commenting that he had contributed
some camera work in connection with a previous KBTV
award-winning broadcast. Akers then declared that he
would be hired subject to a 90-day probation period, with a
stated salary, scheduled to begin directly following his final
2 weeks with Respondent's radio station . Before Stone
left-so his testimony shows-KBTV's news director
allegedly commented that their conversation marked
"about as short a time as anybody has ever been out of a
job."
While a witness , Akers could not, initially, recall whether
Stone had specifically requested work. However, he did
concede, shortly thereafter, that:
I told Carl, to the best of my memory, that I thought we
could use him in television . I also [seem ] to remember
calling in Roger Ogden , the assignment director, and
telling Roger that we might be able to use Carl in
television as a cameraman.
According to Akers, Ogden merely shrugged, making no
specific reply. KBTV's news director declared, while a
witness, that he did not consider their conversational
exchange a commitment with respect to Stone's hire; no
details with respect to salary, or starting date , were-so he
claimed-discussed.
Upon this record, General Counsel suggests that Stone's
circumstantially detailed testimony, based on definite
recollection , should be credited, with Akers' generally
vague recital-wherever divergent-disbelieved . Simplistic
credibility resolutions , however, sometimes straitjacket a
trier of fact's search for logical, reasonable dispositions in
connection with testimonial conflict; factual determina-
tions bottomed upon synthesis and reconciliation frequent-
ly provide the most reasonable, likely approximation with
respect to whatever may have taken place. Such a middle-
of-the-road disposition, within my view, seems warranted
herein . With due regard for Akers' position in KBTV's
managerial hierarchy, I consider it less than likely that he
would have given Stone a firm hiring commitment-par-
ticularly in regard to news cameraman work-before
consulting with those television station staff members
whose work would be most directly affected thereby; those
who would, therefore, be most directly concerned . Never-
theless-with due regard for the friendly relationship
which concededly prevailed between them-I doubt that
KBTV's news director would have simply fobbed Stone off
with a noncommittal statement that he "thought" some
place "might" be found for him. Within their conversa-
MULLINS BROADCASTING COMPANY 125
tion's total context, I find, Stone was given substantial
reason to believe that he was being promised a news
cameraman position.
Within a day or two, however, Stone had a brief
conversation with Reiman, KBTV's news manager. The
latter declared that Stone might have done something
which he should not have done; he asked, "What is this I
hear about your filing charges?" Reiman stated-so Stone
testified-that he had learned of Stone's declared inten-
tion, with respect to filing NLRB charges, through Scott's
memorandum detailing their April 16 conversation, which
had been circulated to Respondent's department heads.
(Scott had prepared such a memorandum nominally
directed to MacCrystall; therein Stone's brief reference to
possible NLRB charges, which Scott characterized as a
threat, had been mentioned.) When Stone conceded that
he had, indeed, mentioned such a possibility, Reiman
commented that filing charges would be "very stupid"
since Alvin Flanagan, Respondent's president, could
overrule Akers, thereby depriving Stone of possible
employment whether or not KBTV' s news director wished
to hire him. Stone declared, however, that he "didn't bite
the hand that fed" him; he stated that possible Board
charges had merely been mentioned once, before his April
16 discharge. (These factual findings rest upon Stone's
uncontroverted testimony, which I find no reason to
discredit in this connection. As previously noted, Reiman
was never called to testify herein; Respondent's counsel
have proffered no rationale for their failure to summon
him.) In conclusion, Stone reported that-since he was
being "hired across the hall" for television work-no
Board unfair labor practice charges would be filed.
Directly following this conversation, however, Stone
called upon Scott; he complained that KBTV's news
director had disseminated false information regarding his
(Stone's) purported plan to file NLRB charges. Scott,
replying, declared that he had a duty to report "all such
things" directly to Respondent's management. Stone, so his
testimony shows, thereupon asked whether Scott consid-
ered him "stupid enough" to file charges challenging a firm
which proposed to hire him for television work; when Scott
replied negatively, Stone reiterated his protest regarding
the latter's memorandum report. Respondent's news
director, so I find, thereupon noted that he could now
report their renewed conversation, thereby "seeing" to it
that Stone got no position with Respondent's television
station.
While a witness, Scott had not been questioned,
specifically, with respect to this conversation. His testimo-
ny-completed before Stone took the witness stand-thus
reflects nothing more than a bare, ipse dixit denial,
tangential in this context, that Stone had been threatened
with regard to his employment, should he persist in
carrying on union activities. Stone's proffered recollection
relative to their April 17 or 18 talk-within my view-mer-
its credence.
4. Respondent's refusal to hire Stone for
television work
On or about April 20, Akers telephoned Stone at home
during Stone's day off; he reported that "due to internal
television pressure" he would be unable to hire Stone for
KBTV's newsroom staff. Stone asked whether such
internal pressure had come from Scott; Akers denied this,
however, declaring that he had been referring to Tom Baer,
KBTV's chief photographer, who had stated he wanted a
fully qualified cameraman , not someone whom he would
have to train.
Stone recalled nothing further regarding this conversa-
tion. However, KBTV' s news director-whose testimony
substantially corroborated Stone's recital-reported fur-
ther that he had summarized, for the latter's information,
the representations which Baer, together with Roger
Ogden, had made to him:
... and I explained fully, I thought, to him the
problems that we have in requiring trained cameramen.
Carl was not a trained cameraman in using sound gear
and all the things that a cameraman is required to do. I
told him on the phone that I was extremely sorry
because he and I had worked together about three
years and we had a personal friendship, and I was
indeed sincerely sorry that I couldn't use him, but I had
no openings for him.
When summoned in Respondent's behalf, both Ogden and
Baer testified that they had participated in Akers' decision,
convincing him that Stone's hire-despite his conceded
competence in certain respects-would "put [KBTV's news
camera crew] in a bind" since the station merely had three
fully qualified cameramen and would then have three
trainees. While a witness, further, Baer declared-purport-
edly recapitulating the representations which he had
previously made to KBTV's news director-that Stone's
hire as a trainee would have "unbalanced" his camera
crew; he contended that this would have impaired the
crew's efficiency, making it more difficult for them to
produce a quality "product" for television broadcasts.
5. Subsequent developments
On Stone's last day of work-designated as April 28
within the present record-Scott entered KBTR's control
room while Stone was cleaning out his "box" there. A
conversation ensued; some rather disjointed, testy, and
calculatedly abrasive remarks were exchanged. Scott
particularly-so I find-became angered. When Stone was
about to leave, with his possessions, the radio station's
news director leveled a parting shot, "And don't ever say
you worked at KBTR, and don't use Mullins Broadcasting
as a reference." (These factual findings derive from Stone's
testimony. Scott, though he purportedly remembered their
final conversation, could not remember the substance of
their talk; he merely recalled that "the atmosphere" had
been cool.) With matters in this posture, Stone left, after
first visiting Reiman's office to say goodbye. So far as the
record shows, he has not-since then-revisited Respon-
dent's premises.
On May 5, the representation election previously
directed was held. Complainant Union received a majority
of the votes cast.
Thereafter, on May 11, so Hautzinger's credible testimo-
ny shows, Scott had occasion to engage her in conversa-
tion. He asked whether she had heard that Hal Davis was
soon to become KBTR's new general manager. Hautzinger
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responded affirmatively. (The record shows that Respon-
dent's radio station did terminate General Manager
MacCrystall's services, for reasons not herein material, and
that his tenure ceased May 14. His successor, Hal Davis,
did serve from that date until sometime in July, thereafter.)
Scott reported, then, that he had spoken with Davis; that
Davis had said he would do his best-should the "shop"
drop union representation-to see that KBTR continued
its then current all-news broadcast format. When Haut-
zinger protested that this seemed to place some "unfair
pressure" upon Respondent's employees, Scott voiced his
personal conviction that, should complainant Union
persist, the station's management would have to switch to a
music format (which would necessarily reduce the number
of staff positions for "on-the-air" reporters). The news
director declared, however, that, with Davis as general
manager, unionization would not be necessary. (Scott's
testimony-proffered before Hautzinger took the stand
-contains nothing properly cognizable as contradictory
with regard to Hautzinger's recollection of this particular
conversation. Her testimony, with respect thereto, has been
credited.) Nothing further was said. On May 13, 1971,
complainant Union was certified as the exclusive repre-
sentative of KBTR's employees, within the bargaining unit
which the Regional Director had previously found appro-
priate for collective-bargaining purposes.
C. Analysis and Conclusions
1. The change in Way's job duties
General Counsel suggests, herein, that Respondent
violated both Section 8(a)(3) and (4) of the statute, when
Richard Way's previously performed job duties and
functions were diminished directly following his testimony
given during a Board representation case hearing. These
contentions, within my view, have been sustained.
The representation case record, proffered and received
herein pursuant to stipulation, reveals that Way was
summoned as complainant Union's witness; when request-
ed to describe his various job functions, he proffered a
factual description which-reasonably construed-did
tend to undercut Respondent's contention, therein, that
separate bargaining units should be found proper for
KBTR's 12 "on-the-air" announcers and 4 "off-the-air"
controllers. The next morning, however, Way's various
work-related duties, functions, and responsibilities were
promptly redefined; KBTR's news director declared that
he would be, thereafter, restricted to three designated
functions, and would no longer be required to perform two
particular functions which, concededly, required greater
initiative, and presented greater challenges. The present
record, considered in totality, warrants a determina-
tion-which I make-that Respondent' s management,
thereby, discriminated against Way because of dissatisfac-
tion with his representation case participation in complain-
ant Union's behalf.
Within his brief, Respondent' s counsel-purportedly
countering General Counsel's presentation-points out
that this Board's Regional Director, before the present
consolidated complaint issued, twice refused to issue a
complaint specifically challenging the propriety of Respon-
dent's course of conduct with respect to Way's terms and
working conditions. Counsel's factual resume, however,
fails to delineate, precisely, whatever significance these
prior refusals may carry, for present purposes. Well-
established decisional doctrine dictates a conclusion
that-since they did not rest upon a formal proceeding,
within which relevant factual and legal questions were
litigated-they provide no basis for a possible resjudicata
determination herein; likewise, clearly, they create no
present "equitable estoppel" calculated to bar General
Counsel's prosecution. They cannot-so I find-preclude a
Board determination, bottomed upon a formal record,
calculated to resolve the factual and legal questions herein
presented.
Respondent, however, specifically challenges General
Counsel's contention that Way's duties were changed
discriminatorily. Within his brief, counsel suggests, rather,
that the latter's duties were consolidated "because station
personnel genuinely felt [presumably because of his
representation case testimony solely] that [he] was unhap-
py" with five different functions. Upon this record,
however, such a contention-within my view-smacks of
stultification. Way's prior testimony, save for his rather
prideful "team" reference, had been completely factual;
nothing whatsoever, therein, had suggested discontent.
Clearly, therefore, Scott's "next day" comment-purport-
edly recapitulating a judgment which General Manager
MacCrystall claimed to have reached following the station
employee's testimony-merits characterization as com-
pletely gratuitous. Nevertheless, despite Way's patent
surprise and repeated protestation that MacCrystall's
purported judgment was mistaken, KBTR's news director
persisted. Respondent's management representatives, so
Scott declared, considered him discontented. They had,
Scott reported, spent 2 hours the previous evening trying to
"figure out" how to make him "happy" with his work. And
they concluded-so the record shows-that their purpose
could be accomplished by restricting Way's work-related
functions to the "least interesting portions" compassed
within his then current schedule. Such strangely aberrant
paternalism-within my view-reflects "needling" reason-
ably calculated to discombobulate him, rather than
genuine helpfulness. Further, Scott's several declarations
-during his subsequent conversation with Hautzinger
directly following Way's reassignment-clearly warrant a
present determination that Respondent's management was
really "unhappy" because of the latter's representation
case testimony; that it was their unhappiness which
motivated his reassignment; and, finally, that KBTR's
news director, himself, considered Way's revised work
schedule a form of reprisal. Respondent's contrary sugges-
tions carry no persuasive power.
Lastly, Respondent contends that Way's reassignment
should not be considered "discrimination or punishment"
since neither his salary nor his work hours was changed.
This suggestion, however, likewise lacks merit. Statutorily
proscribed Section 8(a)(3) and (4) discrimination "in
regard to . . . any term or condition of employment" may
be found, whenever a forbidden cause or motive therefor
has been proven, even though a particularly disadvantaged
worker's current wage scale and working hours may not
MULLINS BROADCASTING COMPANY 127
have been directly affected thereby. Kendall Company, 188
NLRB No. 118 (TDX) (warning notice issued for pretextu-
al reasons); Nathan's Famous of Yonkers, Inc., 186 NLRB
No. 19 (transfer to a less desirable place of work); Capital
Electric Power Association, 171 NLRB No. 42 (TXD)
(exclusion from a preferential work list); Block-Southland
Sportwear, Inc., 170 NLRB 936, 974-977 (transfer to less
desirable work, warning notice issued for work absentee-
ism required by Board subpena); Kinter Bros., Inc., 167
NLRB 57, 58 (transfer to less desirable work); Macy's
Missouri-Kansas Division, 162 NLRB 754, 760-763 (trans-
fer to better paid work within a different department);
Sheboygan Sausage Company, Inc., 156 NLRB 1490,
1503-1516 (transfer to less desirable work). Previously,
within this decision, I have found that Way's job duties,
functions, and responsibilities were modified because of his
representation case testimony-proffered therein pursuant
to complainant Union's request-and, more particularly,
because Respondent's management was concerned about
that testimony's possible weight and significance. For
people like Way herein-considered "talent" employees
-personal, nontangible, factors frequently contribute
significantly to work satisfaction. Work schedule changes
calculated to withdraw from such employees job duties and
functions which require more initiative, carry greater
responsibility, and present a greater challenge necessarily
render their work less desirable; such changes may,
therefore, reasonably be considered punitive. The present
record-within my view-fully warrants a determination,
consistent with the decisions herein cited, that Richard
Way was discriminatorily deprived of desirable job duties,
functions, and responsibilities, for reasons statutorily
proscribed.
2. Respondent's decision to reduce Stone's
working hours followed by his termination
Previously, within this Decision, determination has been
made that Respondent's management-speaking through
its radio station's news director-publicly stated its
purpose to reduce "staff spending" by 10 percent, through
revised work schedules, because complainant Union's
eventual success in winning representative status was
foreseen; Scott declared, so I have found, that Respon-
dent's management expected complainant Union, when
recognized, would present wage increase demands, but
proposed to "make room . . . for them" beforehand, so
that, when granted, they would merely serve to restore the
station's overall salary costs to their current level.
General Counsel contends, herein, that Stone's working
hours were slated for a prospective reduction pursuant to
this cost-cutting program. Further, General Counsel
suggests, within his brief, that Respondent's proposal to
reduce Stone's working hours, for the purpose noted,
should be considered "in and of" itself, without any further
proof of union animus, discrimination with regard to his
working terms and conditions, for a statutorily proscribed
reason. These contentions, within my view, merit Board
concurrence.
Preliminarily, some basic principles should be noted. The
Supreme Court has held that the tendency of challenged
employer conduct to "weaken or destroy" statutorily
protected rights constitutes the controlling standard for
determining 8(axl) violations . N.L.R.B. v. Burnup & Sims,
379 U.S. 21, 23-24. The Court has declared further
that-under certain circumstances-this Board's determi-
nations in regard to statutorily proscribed interference,
restraint, and coercion reasonably calculated to deprive
workers of their Section 7 rights need not, necessarily,
depend upon record proof with respect to demonstrated
antiumon bias . Likewise, with particular reference to
claimed 8(a)(3) violations, Supreme Court decisions have
defined two situations wherein apodictic proof with regard
to purportedly improper motives may not be necessary.
N.L.RB. v. Great Dane Trailers, 388 U.S. 26; N.L.R.B. v.
Fleetwood Trailer Company, 389 U.S. 375. In Great Dane
Trailers, Chief Justice Warren noted that, when challenged
employer conduct may reasonably be considered "inher-
ently destructive" with respect to important employee
rights, no proof of antiunion motivation is needed; this
Board, under such circumstances , can find an unfair labor
practice even should the concerned employer produce
evidence that his conduct was motivated by business
considerations . Secondarily , however, should a determina-
tion be considered warranted, merely, that "the adverse
effect of the discriminatory conduct on employee rights"
was comparatively slight, the presence of some antiunion
motivation must be proved, but only if the concerned
employer has proffered "evidence" calculated to establish
some legitimate and substantial business justification for
challenged conduct. 388 U.S. 26 at 34; 389 U.S. 375 at 380.
Should the respondent employer fail to show "legitimate
and substantial business justifications" challenged conduct
may properly be considered statutorily proscribed, despite
any possible lack of proof regarding a specific antiunion
motivation therefor.
The present record, within my view, fully warrants a
determination, at the very least, that Respondent manage-
ment's decision to reduce KBTR's staff salary costs-for
the specific purpose previously noted-was reasonably
calculated to affect protected employee rights adversely, to
some extent.
When General Manager MacCrystall directed Scott to
reduce the radio station 's total salary costs, so that some
concessions to complainant Union could be made during
negotiations thereafter without raising Respondent 's over-
all salary expenditures above their current levels, the
immediately prospective earnings of station personnel were
placed in jeopardy, precisely and solely because of their
scheduled participation in statutorily sanctioned proceed-
ings. Since the Regional Director 's recently published
Decision and Direction of Election had generated Mac-
Crystall's decision, KBTR's staff would necessarily be
persuaded, thereby, to "think twice" before proceeding to
designate a collective-bargaining representative. In short,
Respondent's projected cost-cutting program-considered
with due regard for its timing particularly-burdened the
statutorily protected right of KBTR's employees to engage
in a representation proceeding. To the extent that Respon-
dent's plan, when effectuated, would have caused some
earnings loss for particular employees , which they would
not otherwise have been required to bear, the plan's
effectuation would inevitably had tended to alienate them
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the labor organization seeking designation as their
collective-bargaining representative, complainant Union
herein.
Likewise, Respondent's course of conduct-proceeding
to fruition-would necessarily have "undercut" the collec-
tive-bargaining process which Respondent's management
considered reasonably in prospect; thereby, Respondent's
program would necessarily have discouraged the station
staff's acquisition or retention of membership with their
newly designated exclusive bargaining representative.
These results, however, would have been derivative from
Respondent's basic underlying offense, the financial toll
which KBTR's management proposed to levy upon
concerned station personnel, because of their participation
in statutorily sanctioned representation proceedings. Com-
pare Hudson Transit Lines, Inc., 173 NLRB 133, 136-139,
enfd. 429 F.2d 1223, 1227-1232, (C.A. 3), in this connec-
tion. (The present record may not, conceivably, warrant a
determination' that Respondent's cost-cutting program,
when effectuated, would have been "inherently destruc-
tive" of statutorily protected employee rights. There can be
no doubt, however, that Respondent's projected imposition
of various salary cutbacks, whether effectuated through
reduced work schedules, layoffs, or some other means,
shortly before a vote calculated to resolve complainant
Union's representation claim was scheduled, could have
"adversely affected employee rights" to some extent. See
N. L. R. B. v. Great Dane Trailers, supra, N.L.R.B. v. Hudson
Transit Lines, Inc., supra. Compare United States Pipe &
Foundry Co., 180 NLRB 325, 327-328; this Board, therein,
concurred with a Trial Examiner's determination that a
concerned employer's temporary withdrawal of various
employee benefits during collective-bargaining negotia-
tions, calculated to force a contractual settlement upon
terms which the respondent firm considered less burden-
some, visited a hardship upon particular workers affected
thereby because of their union adherence; the respondent
firm's tactic -was found to constitute proscribed interfer-
ence with statutorily guaranteed rights, as well as discrimi-
nation for having engaged in union activity.) With matters
in this posture, then, we must consider, whether Respon-
dent has come forward with evidence sufficient to show
some "legitimate and substantial business justification" for
MacCrystall's cost-cutting directive.
The present record, considered in totality, provides no
basis-within my view-for a factual determination that
Scott's projected work schedule revisions, concededly
undertaken pursuant to "orders from Mr. MacCrystall to
cut the payroll by ten percent," were really economically
motivated.
While a witness, Scott did attribute MacCrystall's
directive to Respondent radio station's financial condition.
Further, within this decision, I have previously found
that-during his April 16 conversation with Hautzinger
particularlyhe did mention management's concern re-
garding a purportedly declining profit margin. Respon-
dent's defensive presentation herein, however, reflects no
evidentiaryproffers calculated to provide reliable, substan-
tial, and probative support for a conclusion that KBTR's
financial condition was, really, less than healthy. True,
Stone did concede that KBTR's news director-during
their crucial April 16 conversation-had cited the station's
Frontier Airlines commercial account as lost, and had
described "the condition of the economy in general" as not
favorable. Clearly, however, Scott had proffered no
support for these bare ipse dixit pronouncements, during
the several conversations in question ; Respondent's defen-
sive presentation herein, likewise, reflects no evidentiary
showing, whatsoever, in these respects. To the contrary,
Scott's testimony, finally, reflects a concession that--de-
spite MacCrystall's directive-the radio station's staff was
never really reduced. He testified that:
I think when I got to the station there were 22 full-time
and two part-time employees, I believe. When I left the
station in August, there were 22 full time and two part
time for the same total of 24. It was always very near
that figure.
For the record, further, General Counsel has proffered
several previously posted rosters listing station personnel;
these were presumably produced to support a determina-
tion, herein, that KBTR's staff suffered no permanent
reduction, either during the period with which this case is
directly concerned or thereafter; Respondent's presenta-
tion reflects no effort, whatsoever, to explain these rosters
or to counter whatever relevant inferences this Board
might derive therefrom.
Further-even assuming , arguendo, some contention
herein that the anticipation of increased labor costs due to
unionization should be considered a realistic factor
sufficient to justify Respondent's projected cost-cutting
program-the present record provides no persuasive
support for a conclusion that such cost increases could
reasonably have been anticipated. A representation vote,
though directed, had not yet been scheduled; complainant
Union's right to demand recognition and collective
bargaining had not yet been determined; no salary
demands had yet been presented. Under these circum-
stances, so I find, Respondent's belief-proclaimed
through Scott particularly-that some "room" had to be
made, immediately, for salary concessions which might
eventually be demanded during prospective collective-
bargaining negotiations, derived from a remote and
tenuous possibility which was "not commensurate with"
and which, therefore, could not justify the station's cost
reduction program, and the overwhelming probability that
it would, when effectuated, adversely affect statutorily
guaranteed employee rights. N.L.R.B. v. Hudson Transit
Lines, Inc., supra. See, likewise , N.L.R.B. v. George J.
Roberts & Son, Inc., 451 F.2d 941 (C.A. 2), enfg. 188 NLRB
No. 51, in this connection. Respondent's proposed cost
reduction program was not calculated to meet a current
economic exigency but one predicated, as previously
noted, upon the possible outcome of negotiations which,
conceivably, would later take place. Respondent was
assuming the culmination of a sequence that had not yet
even begun; this on no other basis than MacCrystall's
belief that complainant Union's prospective success in
winning representative status would eventually prompt it
to confront Respondent with a ten percent salary increase
demand.
The present record realistically viewed, in short, clearly
warrants a determination that Respondent's manage-
MULLINS BROADCASTING COMPANY 129
ment-through its projected cost reduction program-was
seeking, beforehand , to build a lower "floor" from which,
to bargain upward , later, with respect to staff salaries. Had
Respondent determined to effectuate some comparable
salary cost reductions following a bargaining representa-
tive 's selection , but before any negotiations had yet taken
place, such reductions would clearly have violated Section
8(a)(5), not charged herein . A representation vote preced-
ent to a collective-bargaining representatives designation
was, however, in the offing ; Respondent's projected cost
reduction program, therefore, contemplated the creation of
a situation which would necessarily affect, significantly,
one subject matter of future negotiations . Such a purpose,
looking toward future possibilities , provides no valid
justification , within my view, for management conduct
which, when undertaken, invaded the protected right of
KBTR's staff personnel to participate in a representation
proceeding without suffering reprisal or threats of reprisal.
My conclusion with respect to Respondent's basic
violation here derives from a determination that Scott's
projected cost-cutting program-because of its timing and
purpose-constituted interference, restraint, and coercion,
directed against the protected right of radio station
personnel to determine and freely choose a bargaining
representative . And since the program was, further,
purposed to restrict and confine the bargaining process,
Scott's undertaking with respect to its effectuation,
likewise, constituted an act of discrimination, reasonably
calculated-so I find to discourage union membership
and support. Respondent herein-as previously noted
-has proffered no reliable, substantial, or probative
evidence tending to demonstrate "substantial business
justifications" for the program; determination is found
warranted , therefore, that Respondent's course of conduct,
now under consideration , transgressed the statute 's Section
8(a)(1) and (3) strictures , without regard to whether
Respondent's management was subjectively motivated,
precisely, to bring about the statutorily proscribed interfer-
ence and discouragement which flowed therefrom.
Upon this record, however, Carl Stone seems to have
been the first-and, so far as can now be told , only-pro-
jected victim of Respondent's unlawfully motivated sched-
ule revisions . Since he was , concededly, selected for a
reduction to part-time work, pursuant to a program which
I have herein found subject to statutory interdiction, no
further evidentiary showing that he was discriminatorily
chosen, for some particularized reason, need be made.
Compare J. M. Lassing, et al. d/b/a Consumer's Gasoline
Station, 126 NLRB 1041, 1049-1051, in this connection. I
find it unnecessary, therefore , to determine whether-con-
sistently with General Counsel's further contention-the
radio station's news director selected Stone for discrimina-
tory treatment, particularly, because of his known union
sympathies . (Within his brief, General Counsel suggests
-with considerable record justification-that Stone's
freely declared and clearly displayed support for complain-
ant Union herein was really known to Respondent's radio
station management . Were a determination with regard to
Respondent's presumptive "knowledge" with respect there-
to required, herein, I would probably so hold. However, the
present record-within my view-provides nothing more
than some basis for suspicion that Stone 's union sympa-
thies were considered by KBTR's news director-or that
they constituted a moving factor-when his working hours
were initially scheduled for reduction . Nothing herein
warrants a determination that KBTV's news manager,
though a recipient of Stone's freely proffered declaration
that he would vote for complainant Union herein,
mentioned it during any discussion with KBTR's manage-
ment representatives . And Scott, certainly, said nothing
calculated to reveal a previously hidden antiunion animus,
directed toward Stone particularly, during their April 16
conversation's early stages . Respondent 's management, so
far as the record shows , had mounted no sustained
campaign to counter complainant Union's certification
drive . Nor had Stone 's previously manifested support for
complainant Union herein-so far as the record shows
-generated management resentments centered upon him
particularly. According to Scott's recollection , KBTR's
general manager-the station's eminence grise so far as this
case is concernedhad advised him to consider complain-
ant Union's designation and selection a foregone conclu-
sion, and to refrain from worrying about it. With matters
in this posture, the present record-even without regard for
Scott's last-mentioned self-serving protestation--can hard-
ly be said to provide a reliable, substantial, or probative
basis for concluding that Stone was deliberately selected
for a retaliatory working hours reduction , because of his
union sympathies.) Whether or not Stone was, himself,
discriminatorily selected, his scheduled reduction in
working hours-pursuant to a projected cost-cutting
program set up for statutorily proscribed reasons--consti-
tuted discrimination violative of law. I so find.
Respondent does- -of course-contend that Stone was
designated to work a reduced schedule for several business
reasons-which General Counsel would, contrariwise,
have me characterize as pretextual . Within his brief,
company counsel notes that Stone had previously been
removed from "traffic report" duty because of manage-
ment's dissatisfaction with his on-the -air delivery ; that his
concurrent pursuit of college studies had previously
required management to arrange some occasional split
shifts for him which had complicated the radio station's
work schedules ; that Scott had developed something less
than a high regard for his overall job performance; and
that KBTR's news director, for reasons never convincingly
explicated herein, had previously considered him a part-
time worker. Upon this record, however, I would consider
Scott's testimonially professed subjective judgment with
regard to Stone's job performance, together with his
presently declared conclusionary determination that Stone
was a part-time worker, both unsubstantiated and unper-
suasive . Respondent's further suggestions-that he (Stone)
had been selected for a cutback in hours because of
management's previously-articulated 'judgment that he
lacked certain desirable qualifications for on-the-air duty,
and because Scott believed his continued full-time employ-
ment, coordinated with college study, might generate
future work scheduling problems-could conceivably be
persuasive under other circumstances . Since he was,
however, concededly designated for a prospective reduc-
tion in working hours to effectuate MacCrystall's cutback
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directive which I have found unlawfully motivated, the fact
that his selection could, conceivably, have been justified,
had Scott been trying to formulate a cost reduction
program adopted for "legitimate and substantial" business
reasons, provides Respondent with no exculpation herein.
Stone's discharge must now be considered. When
confronted with Scott's notice that he would thereafter be
required to work a significantly restricted part-time
schedule, he declared that he would "probably" have to file
N.L.R.B. charges; Scott concededly became "hot under the
collar" when this remark was made. (Stone's testimonial
declarations herein-detailing his basis for believing that
Respondent's conduct would be found statutorily pro-
scribed-reflect a layman's misconception regarding the
statute's precise thrust. Realistically, however, he was quite
close to the mark. And Scott's possible consciousness that
his course of conduct when dispassionately viewed
-might well be considered deficient in fairness may
conceivably have contributed to his angry reaction noted;
his testimony that he was merely trying to dissuade Stone
from pursuing a course which might upset prospective or
potential employers smacks of post hoc rationalization.)
When Stone, nevertheless, persisted in voicing his resent-
ment and distress over Scott's proposed reduction of his
working hours, because it would severely restrict his
earnings, he was given "two weeks notice" that he was
being terminated.
Within his brief, Respondent's counsel suggests that
-since Stone had rejected the "new schedule" which Scott
was preparing for him-the latter, with good reason,
terminated him. This contention, however, merits rejection.
Had Scott's proposal-with regard to Stone's newly revised
working schedule-been derived from a so-called "cut-
back" program bottomed upon legitimate and substantial
business justifications, the latter's refusal to accept such a
justified part-time schedule could, conceivably, provide
some basis for a Board determination that his subsequent
dismissal flouted no statutory mandate. Compare Currin-
Greene Shoe Manufacturing Company, Inc., 190 NLRB No.
120 (TXD), in this connection. The present record,
however, will warrant a conclusion-within my view-that
Stone's discharge constituted a spur-of-the-moment escala-
tion with respect to Respondent's unlawfully motivated
cost-cutting program, reasonably calculated to promote
that program's proclaimed purpose. (I find support for this
determination in Scott's refusal to reconsider his discharge
decision; this, despite Stone's apology, which he coupled
with a declaration of willingness to take part-time work.
Had KBTR's news director really been concerned to
dissuade Stone from doing something foolish, his discharge
decision could have been readily reversed.) Since Stone's
termination, thus, carried to'fruition a cost-cutting pro-
gram, which I have found discriminatorily motivated, that
termination-separately considered-may likewise be con-
sidered violative of law. I so find.
3. Respondent's refusal to hire Stone for
television work
General Counsel herein contends that, directly following
Stone's receipt of Scott's 2-week termination notice, Carl
Akers hired him for a news cameraman position, not
knowing or being informed of his union sympathies or his
tentative "threat" with respect to filing unfair labor
practice charges; that KBTV's news director learned of
Stone's union adherence and possible NLRB charges
shortly thereafter, either through conversations with News
Manager Reiman or through a perusal of Scott's memoran-
dum with regard to Stone's April 16 termination, which
had purportedly been circulated to Respondent's depart-
ment heads; and that Akers' subsequent April 20 with-
drawal of his previously proffered hiring commitment
reflected a decision not to hire Stone because of his union
activities and/or because he had threatened to charge
Respondent with unfair labor practices. Confronted, then,
with Respondent's rejoinder-that Stone was really denied
a cameraman's position solely because he lacked certain
skills which a competent, "fully qualified" news camera-
man should possess, and because the television station's
news camera crew could not, then, conveniently take on a
third "trainee" without compromising its productive
efficiency and product quality-General Counsel suggests,
first, that neither of Respondent's witnesses who so
testified, Chief Photographer Baer and Roger Ogden, merit
credence. Secondarily, his representative contends
that-should their challenged testimony be credited-the
negative representations which they purportedly made
were calculated, merely, to provide KBTV's news director
with a pretextual reason for discriminatorily denying Stone
news cameraman work.
The present record, considered in totality, does not.
-within my view-sustain General Counsel's theory, with
respect to this particular facet of his complete case. For
several reasons, I have concluded that Respondent's
counter-presentation--detailing the circumstances which
prompted KBTV's rejection of Stone's request for news
cameraman work-merits Board concurrence.
First: The mere fact that Respondent's television station
supervisors-Akers and Reiman-may have become
knowledgeable with regard to Stone's previously manifest-
ed union sympathies and/or his purported threats to
charge Respondent's radio station management with unfair
labor practices cannot, without more, sustain a factual
determination that their subsequent refusal to hire Stone
was motivated thereby.
(My subsidiary conclusion herein-consistently with
General Counsel's contention-that these management
representatives, shared "knowledge" with regard to Stone's
prounion views and/or his April 16 remark relative to
filing Board charges, derives from a record showing which
Respondent has not controverted. KBTV's news manager
clearly had, sometime previously, received Stone's freely
proffered comment that he intended to vote for complain-
ant Union herein; further, Stone's credible, undenied
testimony regarding their April 17-18 conversation clearly
reveals Reiman's knowledge with respect to his [Stone's)
purported charge threat. With due regard for relevant
Board precedents, Akers' concurrent knowledge, with
respect thereto, whether actual or merely constructive, may
be presumed.)
Some evidentiary showing with respect to their claimed
union animus must, normally, be present before inferences
can be considered warranted that some relevant "knowl-
MULLINS BROADCASTING COMPANY 131
edge" with regard to his union proclivities motivated their
disposition of Stone's job request. Nothing of that sort,
however, can be found within the present record. Reiman's
disposition toward Stone, throughout, was clearly friendly;
his comment regarding Stone's purported "threat" to file
NLRB charges reflected avuncular concern, within my
view, rather than resentment or criticism. Akers' final
posture with respect to Stone's job request, likewise,
reflected a tacitly expressed hope that their personal
relationship would continue friendly; General Counsel's
presentation, herein, provides n direct support, whatsoev-
er, for a conclusion that KBTV's news director was
dissembling. This being the situation, then, General
Counsel's present contention-that Respondent's refusal
to hire Stone for news cameraman work derived from
statutorily proscribed motives-must, necessarily, rest
upon further, circumstantial proof, sufficient to warrant a
determination that Akers' professed motives were really
pretextual.
Second: Respondent's proffered reasons for denying
Stone's request cannot, however, be so readily dismissed as
pretexts. Testifying in Respondent's behalf, Chief Photog-
rapher Baer and Roger Ogden reported their participation
in discussions with regard to Stone's possible hire; they
claim to have persuaded KBTV's news director that his
engagement would burden the television station's news
camera crew with a supernumerary member, whose
"trainee" needs would create strains for his "fully quali-
fied" fellow cameraman, thus impairing their capacity to
produce a "quality" product for broadcast purposes. This
line of testimony has not-despite General Counsel's
contrary suggestionbeen directly controverted. Further,
both Baer and Ogden testified straightforwardly; their
testimony, within its record context, certainly cannot be
considered "inherently" beyond credence. I believe that
both were reporting judgments honestly held. General
Counsel suggests, contrariwise, that Baer and Ogden were
really providing KBTV's news director-together with
Reiman presumably-with a pretextual rationale, calculat-
ed to justify Respondent's refusal to hire Stone for news
cameraman work; he cites concessions-proffered by
Respondent's several witnesses-that Stone was "excel-
lent" with respect to shooting still photography, and
sufficiently competent to produce "above average" work
when shooting silent movie film. However, General
Counsel's record showing with respect to Stone's previous
"on-the-job" camera experience will not, reasonably,
support a conclusion that he could "handle any assign-
ment, anywhere, any time" and produce film of profession-
al quality. Though Stone's testimony-which stands
without controversion in this respect-reveals that he had,
during his previous period of KBTV service, done some
sound photography work, General Counsel's presentation,
within my view, cannot be considered a persuasive rebuttal
of Chief Photographer Baer's contention that he lacked
well rounded "sound-on-film" experience, that he lacked
editing experience, and that he possessed basic knowledge,
merely.
Third: I find General Counsel's final suggestion-that
KBTV's news director must have been discriminatorily
motivated because, otherwise, their concededly friendly
relationship would have induced him to find "something"
for Stone to do within Respondent's television station
-singularly unpersuasive. Within his brief, General
Counsel puts the matter thus:
In conclusion, it is hard to imagine that Akers would
not have found something for Stone to do with the TV
station inasmuch as he was a friend of Stone, had
encouraged Stone to go back to school, had sent him
over to the radio station for experience, etc., if Akers
was not discriminatorily refusing to hire Stone.
This rationale suggests a further, obverse contention that
Akers, having given Stone substantial reason to believe he
would be given a news cameraman position, could not
have been persuaded to "renege" with respect thereto for
legitimate business reasons, presented subsequently by
professional colleagues. Previously, within this decision,
however, I have found that persuasive business reasons
-reasonably calculated to justify Akers' withdrawal of his
presumptive job commitment-were, really, presented for
his consideration; that these persuasive considerations
have not been proven pretextual; and that they were
specifically cited and relied upon when KBTV's news
director notified Stone, regretfully, that his work request
could not be satisfied. Further, I have found that General
Counsel's presentation-calculated to suggest two statuto-
rily proscribed motives for Akers' conduct-provides a
less-than-sufficient factual premise for his proffered
conclusion. The rationale necessarily suggested in General
Counsel's declared position-that Akers' statutorily pro-
scribed "discriminatory" motives must have overcome his
previously demonstrated friendly concern for Stone's
welfare-merits rejection.
4. Interference, restraint, and coercion
For reasons which I have previously detailed, within my
discussion relative to Stone's designation for part-time
work and subsequent termination, I find Scott's prior
conversational declaration to Hautzinger-that he was
going to cut wages by 10 percent in anticipation of
complainant Union's certification and subsequent request
for negotiations-reasonably calculated to interfere with,
restrain, or coerce KBTR's concerned personnel, with
respect to their exercise of rights statutorily guaranteed.
Likewise, Reiman's April 17-18 comments that Stone's
presumptive "threat" to file Board charges should not have
been made, and that a followthrough with respect thereto
would be "very stupid" since it would jeopardize his
chances for work on Respondent's television side-clearly
carried a suggestion, though proffered as friendly counsel,
that employees might find their positions or job possibili-
ties in jeopardy, should they choose to exercise statutorily
guaranteed rights. Thereby, I find, Respondent further
flouted a statutory mandate.
The record, previously summarized, reveals that Stone,
following his conversation with KBTV's news manager,
challenged the propriety and fairness of Scott's circulated
memorandum report that he (Stone) intended to charge
Respondent's management, then and there, with unfair
labor practices. KBTR's news director-so I have found
-testily replied that he could further publicize Stone's
protest, thereby prejudicing his chances for procuring work
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on Respondent's television side. Substantially, this was a
threat that Stone's possible hire for news camera work
might be stalled or foreclosed because of his previous
declaration that he might "possibly" find himself con-
strained to exercise a statutorily guaranteed right. Scott's
comment, therefore, must be considered violative of law.
On May 11, so I have found, Scott suggested to
Hautzinger that-should KBTR's staff members drop their
newly designated union representative-the station's newly
hired general manager would undertake to preserve its
current "all-news" broadcast format; further, Scott prof-
fered his personal view that, should complainant Union
press its representative status, KBTR's management would
be forced to switch to music broadcasting, which would
necessarily reduce the number of staff reporters needed.
These comments, patently, compassed both a threat of
reprisal and promise of benefit, conditioned upon the
station employees' choice, in futuro, with respect to their
exercise of rights statutorily guaranteed. Such threats and
promises, clearly, merit Board proscription.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's course of conduct described in section III,
above, since it occurred in connection with Respondent's
business operations described in section I, above, had, and
continues to have, a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States; absent correction such conduct would tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Since I have found that Respondent engaged, and
continues to engage, in certain unfair labor practices which
affect commerce, I shall recommend that it be directed to
cease and desist therefrom, and to take certain affirmative
action, including the posting of appropriate notices,
designed to effectuate the policies of the Act, as amended.
Specifically, since I have found that Respondent violated
Section 8(a)(1), (3) and (4) of the statute, through a
discriminatory redefinition and restriction of Richard
Way's work-related duties, functions, and responsibilities,
specifically because of his prior testimony given in
connection with a Board representation proceeding, I shall
recommend that Respondent be required to remove any
restrictive limitations currently in force regarding the scope
of his work duties and responsibilities, and to offer him,
promptly, reinstatement to a position embodying the full
range of work-related duties, functions, and responsibilities
which he had previously performed. (These recommenda-
tions, however, should not be deemed restrictive of
Respondent's right, hereafter, to revise radio station work
schedules-within its sound discretion-for business rea-
sons, so long as such schedule revisions are not bottomed
upon considerations which the National Labor Relations
Act would proscribe.) Likewise, since I have found that
Respondent violated Section 8(a)(3) and (1) of the statute
through Carl Stone's termination under the circumstances
detailed herein, I shall recommend that Respondent be
required to offer him immediate and full reinstatement to
his former radio station position, with a full-time work
schedule--should Stone so request-which provides shift
arrangements , comparable to those which prevailed before
his termination , calculated to permit his continued school
attendance . Should such a position no longer exist, Stone
should be reinstated to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges previously enjoyed.
It will be recommended, further, that Respondent be
required to make Stone whole for any pay losses which he
may have suffered because of the discrimination practiced
against him, by paying him a sum of money equal to the
amount which he would have earned as wages , for full-time
work, between the date of his discharge and the date of his
reinstatement, less his net earnings during such period.
Stone's backpay should be computed by calendar quarters,
pursuant to the formula which the Board now uses. F. W.
Woolworth Company, 90 NLRB 289. Interest thereon
should likewise be paid, computed at 6 percent per year.
See Isis Plumbing & Heating, 138 NLRB 716, in this
connection.
In the light of the foregoing findings of fact and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Mullins Broadcasting Company is an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and business activities which affect commerce,
within the meaning of Section 2(6) and (7) of the Act, as
amended.
2. American Federation of Television and Radio
Artists, Denver Local, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act, as amended,
which admits certain employees of Mullins Broadcasting
Company to membership.
3. Respondent-when it discriminatorily redefined and
restricted Richard L. Way's work-related duties, functions,
and responsibilities because of his activities on behalf of
complainant Union herein, and because he had previously
given testimony in connection with a Board representation
proceeding-discriminated against Way in violation of
Section 8(a)(3) and (4) of the Act, and interfered with,
restrained, and coerced employees in violation of Section
8(a)(1) of the Act, as amended.
4. Respondent-when it discharged Carl Stone because
of his declared resentment and protest following notice
that he was being rescheduled for part-time work pursuant
to a purportedly general revision of staff working schedules
undertaken for statutorily proscribed reasons-discrimi-
nated against Stone in violation of Section 8(a)(3) of the
Act and interfered with, restrained, and coerced employees
in violation of Section 8(a)(1) of the Act, as amended.
5. Respondent-through various statements to employ-
ees by management representatives that (a) their radio
station employer's salary costs were being reduced through
revised work schedules in anticipation of complainant
Union's certification, (b) station personnel might find their
continued employment or chances for reemployment
jeopardized should they pursue previously declared pur-
poses to charge Respondent with unfair labor practices,
MULLINS BROADCASTING COMPANY 133
and (c) station reporters could forestall a staff reduction,
consequent upon possible changes in their employer's
program policy, should they forswear union representa-
tion-interfered with, restrained, and coerced employees
with respect to their exercise of rights statutorily guaran-
teed, in violation of Section 8(a)(1) of the Act, as amended.
6. Respondent, by its course of conduct set forth above,
has engaged in, and continues to engage in, unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act, as amended.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
Respondent, Mullins Broadcasting Company, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Redefining and restricting the work-related duties,
functions, and responsibilities of employees because such
employees have been active on behalf of unions, or
because such employees have given testimony in connec-
tion with a National Labor Relations Board proceeding.
(b) Proposing to reduce or reducing hours of work for
particular employees, pursuant to revised work schedules
which have been prepared to prejudice or restrict-pro-
spectively-their designated collective-bargaining repre-
sentative's future negotiations with regard to their wages,
hours, and terms or conditions of work.
(c) Discharging or otherwise discriminating against
employees who declare their resentment or protest when
notified with regard to their prospectively reduced work
schedules, prepared under statutorily proscribed circum-
stances.
(d) Interfering with, restraining, and/or coercing em-
ployees-in any other like or related manner-with respect
to their exercise of rights which Section 7 of the statute
guarantees.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act, as amended:
(a) Offer Richard L. Way immediate and full reinstate-
ment to a position with the full range of work-related
duties, functions, and responsibilities which he had
previously performed.
(b) Offer Carl Stone immediate and full reinstatement to
his former radio station position-subject to the conditions
and qualifications set forth within "The Remedy" section
of this Decision-or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed.
(c) Make Carl Stone whole for any pay losses which he
may have suffered by reason of the discrimination
practiced against him, consistently with the requirements
set forth within "The Remedy" section of this Decision.
(d) Notify Carl Stone, if presently serving in the Armed
Forces of the United States, of his right to full reinstate-
ment under this Recommended Order, upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(e) Preserve and, upon request, make available to the
Board or its agent, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records relevant
and necessary to analyze and compute the amount of
backpay due under the terms of this Board order.
(f) Post at its place of business in Denver, Colorado,
copies of the attached notice marked "Appendix." 2 Copies
of the notice, on forms provided by the Regional Director
for Region 27, shall be posted immediately upon receipt,
after being duly signed by Respondent's representatives.
When posted, they shall remain posted for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that these notices are not altered, defaced, or covered by
any other material.
(g) File with the Regional Director for Region 27, as the
Board's agent, within 20 days from the date of service of
this Trial Examiner's Decision, a written statement setting
forth the manner and form in which it has complied with
these recommendations .3
1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec,
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order , and all objections thereto shall be
deemed waived for all purposes.
2 In the event that the Board 's order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals,
enforcing an Order of the National Labor Relations Board."
3 In the event that this Recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read-
"Notify the Regional Director for Region 27, in writing, within 20 days
from the date of this Order , what steps the Respondent has taken to comply
"herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given an
opportunity to present evidence and argument, it has been
determined that we violated the law by committing certain
unfair labor practices. In order to remedy such conduct, we
are being required to post this notice. We intend to comply
with this requirement , and to abide by the following
commitments.
WE WILL NOT redefine or restrict the work-related
duties, functions, or responsibilities of employees
because such employees have been active on behalf of a
union, or because such employees have given testimony
in connection with a National Labor Relations Board
proceeding.
WE WILL NOT propose to reduce hours of work, for
particular employees, nor will we reduce them, pur-
suant to revised work schedules which have been
prepared to prejudice or restrict-prospectively-their
designated collective-bargaining representative's future
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations with regard to their wages , hours, and
terms or conditions of work.
WE WILL NOT discharge or otherwise discriminate
against employees who declare their resentment or
protest when notified of prospectively reduced work
schedules prepared under circumstances which the
National Labor Relations Act proscribes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through a
bargaining agent which they have chosen , to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to
refrain from any such activities.
WE WILL offer Richard L. Way immediate and full
reinstatement to a position with the full range of work-
related duties , functions, and responsibilities which he
had previously performed.
WE WILL offer Carl Stone immediate and full
reinstatement to his former radio station position, or, if
that position no longer exists , to a substantially
equivalent position , without prejudice to his seniority
or other rights and privileges previously enjoyed, and
we will make him whole for any pay losses which he
may have suffered by reason of the discrimination
practiced against him.
WE WILL notify Carl Stone , if he is presently serving
in the Armed Forces of the United States, of his right
to full reinstatement , upon application, after discharge
from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended.
Dated By
MuLLINS BROADCASTING
COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office, US Custom House, Room
260, 721 19th Street , Denver, Colorado 80202 ,Telephone
837-3551.